O’Connell v. Yung (2012), 316 B.C.A.C. 115 (CA);
537 W.A.C. 115
MLB headnote and full text
Temp. Cite: [2012] B.C.A.C. TBEd. FE.008
Pamela Margaret O’Connell, by her Litigation Guardian Barry John O’Connell (respondent/plaintiff) v. Andy Tak Yan Yung and Fortune Pacific Enterprises Inc. (appellants/defendants)
(CA038700; 2012 BCCA 57)
Indexed As: O’Connell v. Yung et al.
British Columbia Court of Appeal
Levine, Kirkpatrick and Neilson, JJ.A.
February 3, 2012.
Summary:
The plaintiff sued for damages respecting the extensive personal injuries (including a severe brain injury) suffered in a motor vehicle accident. Liability was admitted.
The British Columbia Supreme Court, in a decision reported at [2010] B.C.T.C. Uned. 1764, allowed the action and awarded the plaintiff non-pecuniary damages of $275,000, in-trust award of $150,000, cost of future care of $2,258,592. The parties agreed on the following damages: past loss of income of $125,000, future loss of income (capacity) of $125,000 and special damages of $5,000. The defendants appealed.
The British Columbia Court of Appeal allowed the appeal in part, by reducing the cost of future care award from $2,258,592 to $1,907,832.
Damage Awards – Topic 102
Injury and death – Head injuries – Brain damage – The plaintiff sued for damages for injuries suffered in a motor vehicle accident – She suffered, inter alia, a severe brain injury with resultant cognitive deficits – The trial judge awarded the plaintiff non-pecuniary damages of $275,000 – The trial judge found that the brain injury had a profound effect on the plaintiff’s life – She lost the ability to live independently, to relate to her loved ones in a meaningful way and to work at a job she enjoyed – She had little awareness of her condition – The quality of her life had been profoundly diminished – The defendants appealed, arguing that the award was inordinately high as it did not accurately reflect the level of the plaintiff’s recovery and her enjoyment of life – The British Columbia Court of Appeal rejected the argument – Although the award may be at the high end of the appropriate range for such damages, it was not inordinately high or an erroneous assessment of the non-pecuniary loss – See paragraphs 42 to 47.
Damage Awards – Topic 487.1
Injury and death – General damage awards – Necessary services provided by family members – The plaintiff sued for damages for injuries suffered in a motor vehicle accident – She suffered, inter alia, a severe brain injury with resultant cognitive deficits – The trial judge awarded the plaintiff non-pecuniary damages of $275,000 and made an in-trust award of $150,000 to the plaintiff’s husband – The defendants appealed the in-trust award, arguing that it overcompensated the husband because the evidence did not support a finding that he spent six hours per day caring for the plaintiff – The British Columbia Court of Appeal rejected the argument – The judge found that most of the supervision, guidance and assistance provided to the plaintiff was “over and above what would be expected from the marriage relationship” – It was unrealistic to expect a precise calculation of the number of hours the husband spent each day in guiding, prompting, and providing cues to the plaintiff as well as in providing actual personal care – Without such assistance, she could not independently live in her home – The award was not inordinately high – See paragraphs 48 to 53.
Damage Awards – Topic 489
Injury and death – General damage awards – Cost of future care and treatment – The plaintiff sued for damages for injuries suffered in a motor vehicle accident – She suffered, inter alia, a severe brain injury with resultant cognitive deficits – The trial judge awarded the plaintiff $2,258,592 for the cost of future care – The defendants appealed – They argued that there was no evidence that the plaintiff and her husband, would follow the personal care recommendations – The husband had provided most of the care because the plaintiff found the workers’ presence upsetting – It was acknowledged that the husband (now age 66) might be unwilling or unable to provide the personal care in the future – The British Columbia Court of Appeal allowed the appeal in part – The trial judge erred in concluding that future care costs were payable whether or not they might be incurred in the future – The assessment of future care costs entailed a consideration of the losses that might reasonably be expected to be required – The court accepted the judge’s assessment of a need for 16 hours of personal care but applied a 20% contingency respecting personal care services that reflected the current needs and the substantial likelihood that the plaintiff’s needs would gradually increase over time – As a result, the award for future care was lowered to $1,907,832 – See paragraphs 54 to 74.
Damages – Topic 1288
Losses by third parties – Recoverable losses – General and special damages for personal care of injured person – [See
Damage Awards – Topic 487.1
].
Damages – Topic 1567
General damages – General damages for personal injury – Future care and treatment – [See
Damage Awards – Topic 489
].
Evidence – Topic 2401.1
Presumptions – Specific presumptions – Inference from failure of party to testify – The plaintiff successfully sued for damages respecting extensive personal injuries suffered in a motor vehicle accident – She suffered, inter alia, a severe brain injury with resultant cognitive deficits – She did not testify – Her counsel advised the court that the plaintiff would be an unreliable witness – The defendants appealed, arguing that the trial judge erred by failing to draw an adverse inference from the plaintiff’s failure to testify – The British Columbia Court of Appeal rejected the argument – An adverse inference could not fairly be drawn in this case – The defendants at trial did not object or ask that an adverse inference be drawn – The medical evidence supported the judge’s conclusion that the plaintiff had limited ability to testify – The evidence suggested that had she testified she might have left a false impression as to the extent of her severe brain injury – See paragraphs 19 to 33.
Cases Noticed:
Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 4].
Thornton v. Board of School Trustees of District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552, refd to. [para. 4].
Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1, refd to. [para. 4].
Jones v. Trudel et al. (2000), 137 B.C.A.C. 220; 223 W.A.C. 220; 185 D.L.R.(4th) 193; 2000 BCCA 298, refd to. [para. 16].
Rimmer v. Langley (Township) (2007), 244 B.C.A.C. 142; 403 W.A.C. 142; 70 B.C.L.R.(4th) 73; 2007 BCCA 350, refd to. [para. 24].
Levesque v. Comeau, [1970] S.C.R. 1010; 5 N.B.R.(2d) 15; 16 D.L.R.(3d) 425, dist. [para. 27].
Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 232; 24 A.R. 620, refd to. [para. 40].
Claiter v. Rose et al., [2004] B.C.T.C. 50; 2004 BCSC 50, refd to. [para. 42].
Spehar v. Beazley, [2002] B.C.T.C. 1104; 2002 BCSC 1104, affd. (2004), 199 B.C.A.C. 256; 326 W.A.C. 250; 2004 BCCA 290, refd to. [para. 43].
Morrison v. Cormier Vegetation Control Ltd. et al., [1998] B.C.T.C. Uned. J84; 101 A.C.W.S.(3d) 512 (S.C.), refd to. [para. 43].
Boyd v. Harris (2004), 195 B.C.A.C. 217; 319 W.A.C. 217; 237 D.L.R.(4th) 193; 2004 BCCA 146, refd to. [para. 43].
Matthew v. Tattrie, [2009] B.C.T.C. Uned. 263; 2009 BCSC 263, refd to. [para. 44].
Dionne v. Romanick, [2007] B.C.T.C. Uned. 227; 2007 BCSC 436, refd to. [para. 44].
De Montigny v. Brossard (Succession), [2010] 3 S.C.R. 64; 408 N.R. 80; 2010 SCC 51, refd to. [para. 45].
Krangle v. Brisco et al., [2002] 1 S.C.R. 205; 281 N.R. 88; 161 B.C.A.C. 283; 263 W.A.C. 283; 2002 SCC 9, refd to. [para. 55].
Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 56].
Coulter v. Ball et al. (2005), 211 B.C.A.C. 110; 349 W.A.C. 110; 39 B.C.L.R.(4th) 82; 2005 BCCA 199, refd to. [para. 60].
Coulter v. Leduc – see Coulter v. Ball et al.
Kroeker v. Jansen et al. (1995), 58 B.C.A.C. 1; 96 W.A.C. 1; 123 D.L.R.(4th) 652; 4 B.C.L.R.(3d) 178 (C.A.), refd to. [para. 64].
MacTavish v. MacGillivray et al. (2000), 136 B.C.A.C. 43; 222 W.A.C. 43; 74 B.C.L.R.(3d) 281; 2000 BCCA 164, refd to. [para. 64].
Fobel v. Dean and MacDonald, [1991] 6 W.W.R. 408; 93 Sask.R. 103; 4 W.A.C. 103; 83 D.L.R.(4th) 385 (C.A.), refd to. [para. 67].
Authors and Works Noticed:
Cooper-Stephenson, Kenneth D., and Saunders, Iwan B., Personal Injury Damages in Canada (2nd Ed. 1996), pp. 315 [para. 65]; 416 [para. 67].
Wigmore on Evidence (Chadbourn Rev.) (3rd Ed. 1979), vol. 2, pp. 192, 210 [para. 26].
Counsel:
S.B. Stewart and M. Wilhelmson, for the appellants;
J.D. Baker, Q.C., and J.N. Jones, for the respondent.
This appeal was heard on December 14, 2011, at Vancouver, B.C., before Levine, Kirkpatrick and Neilson, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered by Kirkpatrick, J.A., on February 3, 2012.
